Employment Retaliation Claims on the Rise

Employment retaliation claims are on the rise, according to the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC reports that, in 2011, retaliation claims accounted for 37.4 percent of all charges filed with the EEOC, amounting to a total of 37,334 charges. This number represents an increase of more than 72 percent since 2000, when the total number of retaliation claims was 21,613.

What Is Employee Retaliation?

Employees are protected from discrimination in the workplace through various federal and state laws, such as Title VII of the Civil Rights Act of 1964 (as amended), the Equal Pay Act of 1963, the Age Discrimination Act of 1967, Title I of the Americans with Disabilities Act of 1990 and the Genetic Information Nondiscrimination Act of 2008. These laws, not only prohibit acts of discrimination based on race, gender, religion, disabilities, and age, but they also prohibit employers from firing, demoting, harassing or otherwise retaliating against an employee or applicant who files a charge of discrimination or participates in a discrimination lawsuit or investigation.

For example, an employer cannot refuse to promote an employee based solely on the fact that employee filed a complaint with the EEOC alleging racial discrimination.

Retaliation claims also protect employees from retaliation based on their participation in whistleblowing activities or because he or she filed a worker’s compensation claim.

Courts generally treat retaliation claims more favorably than other claims and impose strict legal standards on those employers accused of retaliation. In fact, in 2011, the Supreme Court, in Thompson v. North American Stainless, LP, held that an employee who hadn’t previously complained of unlawful conduct but was terminated after his fiancée complained of discrimination was covered under the employment retaliation laws.

What Are the Costs Associated with Employee Retaliation Claims?

The increase in retaliation claims is particularly detrimental to businesses as it increases their risk of exposure to costly litigation. Even if the retaliation claims are ultimately found to be without merit, defending itself against the retaliation claims can be a significant drain on company financial resources. Moreover, the costs associated with defending against a retaliation claim extend beyond the monetary and include loss of time and productivity, as well as negative publicity and a reduction in employee morale.

If a business is found guilty of retaliation, the legal and financial costs may include attorney fees, fines, back pay, front pay, and punitive damages.

According to this Miami Herald article, the most common targets for federal discrimination claims are small to mid-sized businesses with between 15 and 100 employees. Businesses can protect against conduct that could make them susceptible to a retaliation claim and increase the likelihood of a successful defense to a retaliation claim by taking certain actions, such as:

• Exercising considerable care, diligence, and sensitivity in responding to claims of discrimination.
• Ensuring that there are legitimate reasons for adverse employment actions.
• Properly documenting all employment decisions, including adverse employment actions.
• Maintaining a written employee handbook with clear policies regarding hiring, termination, work conditions, and employee discipline.
• Including strong anti-retaliation policies in the written employee handbook.
• Training employees on how to properly handle employee discrimination complaints.
• Consulting with a business law attorney before terminating an employee or applying any significant disciplinary action against an employee.

Contact the knowledgeable Chicago business litigation attorneys at DiTommaso Lubin Austermuehle at (877) 990-4990 or (630) 333-0000 to learn more about defending your business against an employee retaliation claim.